changes in the DUI law in Rhode Island have prompted the law enforcement community to adapt their procedures
for dealing with drivers suspected of DUI. One of those procedural changes
has apparently backfired. Because of this mistake, people charged with
DUI or breathalyzer refusal now have an argument in court which can kill
the entire case against them. The explanation is kind of complicated,
but bear with me.
When the police perform a
DUI investigation, at some point they will ask the motorist to consent to a
breathalyzer examination. This examination is technically a search, and searches are controlled
by the 4th Amendment of the U.S. Constitution. The 4th Amendment says
that a search can only be conducted with a warrant. If there is no warrant
for the search it is unconstitutional unless it meets some very well defined
exception to the warrant requirement.
Stay with me…
One of those exceptions is
consent of the person to be searched. If consent is given, then the police do not need a warrant. Therefore
a search with consent is legal.
But we are not done.
The nature of the consent matters. The person subject to the search has
to give consent freely, voluntarily, and intelligently. If the consent
is not voluntary or made without knowledge of the right not to give consent,
or the consequences of consent, then the consent is invalid.
Which brings us back to our DUI defendant. When the police request that
the defendant take the breathalyzer, they have to give the defendant fair
warning of the
penalties of refusing the test. This is so that later on, when the case is in court and the state is
trying to get the breath test into evidence, the government can say that
the consent was intelligent and voluntary. If the police do not warn of
the penalties of the refusal, then the consent to take the test is invalid.
What has happened now with the new DUI law is that there are a bunch of
new penalties and penalty structures for DUI and refusal. The police adapted
their form they use to advise DUI suspects of their rights, but misstated
Now there are a whole bunch of DUI and refusal cases whose outcome is in
doubt. If only the police had consulted with the defense lawyers before
they made the form….
Another time, we will discuss how the bad form affects refusal suspects.